Police act charges dropped for 3 Toronto cops accused of sex assault

Three Toronto police officers who were acquitted in a high-profile gang sexual assault criminal trial have been cleared of Police Services Act charges stemming from the same incident.

That's because the principal witness, the complainant, has refused to testify, saying she has lost faith in the prosecution process, CBC News has learned.

This is the latest in a series of high-profile cases where complainants have balked at testifying at tribunals after the accused were cleared at criminal trials.

Const. Leslie Nyznik, Sameer Kara and Joshua Cabrero all faced Police Services Act (PSA) allegations of engaging in non-consensual sex with a parking enforcement officer and having consensual sex with a TPS member ranked "in a lower position" on Jan. 16, 2015.

In addition, Nyznik and Kara were accused of accepting free alcohol and food from a downtown bar. Nyznik was also accused of entering the Brass Rail strip club without having to pay the cover charge, according to a notice of hearing.

"The prosecution of the officers is no longer in the public interest. We have been directed to withdraw the allegations of misconduct against the officers and therefore bring the PSA hearing to a conclusion," said prosecutor Ian B. Johnstone in a teleconference.

The complainant indicated to all counsel that she didn't want to testify again because it would be detrimental to her health and well-being. She stated she had lost faith in the prosecution process and didn't want to participate, sources told CBC News.

"The complainant was seeking a certain result, not a fair hearing," said Toronto criminal defence lawyer Michael Lacy, who represented Kara.

"Our clients were exonerated after the criminal trial and we were confident that the same result would have occurred again. Everyone is entitled to a fair hearing, not a certain outcome."

A 'systemic issue' in sex assault cases

But Mandi Gray, a former sexual assault complainant who had the publication ban on her identity lifted in her high-profile trial in Toronto in 2017, said the complainant's refusal to testify is symptomatic of an "ongoing systemic issue."

Gray's trial resulted in a conviction, but the judgment was quashed upon appeal. Rather than testify again at a second trial, Gray resolved her case with a peace bond against her former sex partner.

She said the complainant in this particular case is most likely making the right move in refusing to give testimony

"I understand her feeling that it would be detrimental to do this process again. It's probably the best decision she has ever made," said Gray, who is now a post-doctoral fellow associate at the University of Calgary Cumming School of Medicine. She wrote a thesis on men suing sexual assault complainants.

"She's incredibly brave to do this while working for police services."

In another high-profile Ontario case, two doctors were acquitted after being charged with drugging and sexually assaulting a 23-year-old medical student in 2014. The complainant in that case refused to testify against the same men at a College of Physicians and Surgeons disciplinary hearing in 2017, leading to the cancellation of that hearing.

"The process has been gruelling and has had a significant detrimental impact on Ms. X," said college lawyer Carolyn Silver in reading a letter filed by the complainant.

'A long, difficult ordeal'

That happened the same year that the three 51 Division Toronto police constables were acquitted of their charges. The complainant, who cannot be legally identified, testified she was either so drunk or drugged that she was incapable of resisting.

In her judgment, Ontario Superior Court Justice Anne Molloy found the woman's testimony was inconsistent and occasionally implausible. Her account was also contradicted by hotel surveillance video where she appears steady on her feet, laughing and chatting. A toxicologist's evidence also undermined the complainant's position on her capacity to give consent.

Molloy said the witness could have fabricated an account of walking up to the Yonge Street strip bar with the accused when evidence revealed they shared a taxi to the club.

"If she has reconstructed a false memory about walking to the Brass Rail, how do I know she has not done the same thing with respect to her conduct at the hotel afterwards? If she has lied about the cab ride to the Brass Rail, how do I trust she has told the truth about what happened in the hotel room?" said Molloy.

David Butt, who represented Mandi Gray, said he prepared her and many others who self-identify as sexual assault survivors and complainants in Ontario criminal cases. He said in an interview that he explains to complainants that they lose control over the conduct of the case to the police and the Crown.

"The trial process is a long, difficult ordeal that can be retraumatizing," said Butt.

"And reasonable doubt can mean the accused can be acquitted, even though the judge thinks what you say is probably true. It's hard for people to wrap their heads around that."